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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Martin v David Wilson Homes Ltd.  EWCA Civ 1027 (28 June 2004)
Cite as:  EWCA Civ 1027,  EGLR 77
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
BIRMINGHAM DISTRICT REGISTRY
(HIS HONOUR JUDGE MCCAHILL QC)
B e f o r e :
LADY JUSTICE ARDEN
|DAVID WILSON HOMES LIMITED||Claimant/Respondent|
Smith Bernal Wordwave Limited
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR R JONES QC AND MR M WILKINSON (instructed by HAMMONDS) appeared on behalf of the Respondent
Crown Copyright ©
"... forthwith begin and diligently proceed with the carrying out of the development of the said land by the erection at his own expense of a single private dwellinghouse..."
Completion of that dwelling house was to follow within a period of 18 months. Detailed requirements were laid down as to the approval by the Development Corporation of the house that was to be built. That house was indeed built, and it is the house in which Mr Martin now resides.
"... not to use or permit or suffer any buildings erected thereon or on any part thereof to be used for any other purpose than as a private dwellinghouse either with or without garages and other necessary outbuildings"
"Whether the indefinite article 'a private dwellinghouse' contained in the restrictive covenant set out in paragraph 5 of the Particulars of Claim is to be construed as a limitation of number or whether the restriction is merely to be construed as being as to the manner of use."
"(a) Not without the consent in writing of the Corporation within a period of five years from the date hereof to erect any buildings structure or erections on or to lay any sewers or drains in the land hereby conveyed other than in accordance with plans elevations sections specifications and detailed drawings approved by the Corporation nor to alter the external parts of any such buildings structures or the external elevations thereof
(b) Not to erect any gates boundary walls and fences of any dwellinghouse erected or to be erected on the said land other than in accordance with the plans elevations sections specifications and detailed drawings approved by the Corporation and to keep all such gates boundary walls and fences in good repair and condition
(c) Not at any time to carry on or permit or suffer to be carried on the said land or any part thereof or in any building or buildings erected or to be erected thereon any trade or business whatsoever and not to use or permit or suffer any buildings erected thereon or on any part thereof to be used for any other purpose than as a private dwellinghouse either with or without garages and other necessary outbuildings"
"... I remind myself that the contract merely indicated what it was that the purchaser was obliged to do, namely build a dwelling house within eighteen months. It does not necessarily follow that, because he was required to build a dwelling house within eighteen months, there was necessarily any restriction on what otherwise could be done with that plot of land."
"It is likely that what was intended here was a prestigious development. Having regard to the plans that have been put before me and the delineation of the park, it is inherently probable, in my judgment, that a prestigious development of this kind envisaged a small number of highly cherished plots. Each plot was to have a large expanse of garden which enhanced a significant dwelling house. I find that to be inherently probable."
"'... not to use the said premises for any purpose other than as a private dwelling-house And not to sublet or part with the possession of the premises (except as a furnished house) without the consent in writing of the landlord...'"
"He held that the covenant not to use the premises for any other purpose than as a private dwelling-house was an obligation on the tenant to use the premises for that purpose and for that purpose only and that it could not be said that she was complying with that obligation if she were using part of the dwelling-house as a private residence for herself, and was subletting another part to somebody else, even if that other person was using it, and was bound to use it, as a private residence.
"The ground on which the judge arrived at that conclusion was that the phrase 'a private dwelling-house' envisages the use of the whole building as one dwelling-house, and therefore it creates a conception which is broken by, or is inconsistent with, the division of the house into more than one residence."
"It seems to me, then, that one has to take this covenant as one finds it, and one finds that it is a covenant to use the premises for no other purpose than that of a private dwelling-house, and one finds, and it is not in dispute, that it has been used by the tenant, partly as a dwelling-house for her sub-tenant. That appears to me to be a plain breach of covenant, which is not rescued from being a breach of covenant by the conception to which I have referred, that she impliedly had the right to sublet that part of it."
Harman J placed emphasis on the fact that the covenant to use as a private dwelling house was followed by a covenant not to sub-let the whole. He held that a covenant against sub-letting of a part was already provided for in the covenant not to use otherwise than as one single dwelling house. Evershed M.R. agreed with the construction of the County Court judge.
"If, as in the case before me, a plot cannot be used other than for the purposes of a dwelling house, then, as I see it, the covenant is directed to the plot as a whole. If there are two dwelling houses on the plot, then the plot, viewed as a single entity, is not being used for or in connection with 'a dwellinghouse', but for or in connection with 'two dwellinghouses'. However, where, as in Briggs' case, [that being a reference to Briggs and another v McCusker  2 EGLR 197] the covenant also extends to 'any part' of the plot or, even more, 'any buildings... thereon', it is rather easier to contend that the draftsman had in mind the notion that any building erected on the plot was either to be a dwelling house or to be used in connection with a dwelling house. I am not saying that that is the correct approach to the covenant in Briggs' case, but it does appear to me to give a real basis for distinguishing that decision."
"The answer to the preliminary issue set out in the Order dated 5th March 2004 is that the indefinite article 'a private dwellinghouse' contained in the restrictive covenant set out in paragraph 5 of the Particulars of Claim is merely a restriction as to the manner of use and is not a limitation of number of dwellings permitted upon the plot."
ORDER: minute of order to be produced by counsel, costs to be agreed; costs to be referred to hearing judges if not agreed.